By Yongnian Zheng & Wen Xin Lim

China’s Rule of Law Dilemma

At the Fourth Plenary Session of its 18th Congress in October 2014, the Chinese Communist Party (CCP) leadership passed an ambitious reform plan on the legal system. The party devoted this entire plenary session to discuss the rule of law, which is unprecedented in the history of the Party’s plenary sessions. This act was widely interpreted as the Xi Jinping leadership’s determination to build a system of rule of law in the country.

Indeed, Beijing’s reform initiatives are part of a long-term endeavor to build a system of rule of law started by the late Deng Xiaoping. When the victims of the lawless Cultural Revolution became the Party’s senior leaders in the late 1970s, such as Deng Xiaoping and Peng Zhen, they understood that without laws, both the rulers and the ruled cannot be protected from the arbitrary behavior of individual leaders. With their efforts, concepts such as “equality before the law,” “the supremacy of the law,” “the rule-of-law state” and “judicial independence” began to appear in the Party’s official documents, became popular in the discourse of legal development, and over the years produced a profound and lasting impact on Chinese society. In 1997, pushed very hard by the reformist leader Qiao Shi, the “rule of law” was formally written into the party congress document of the 15th Party Congress. Xi now wants to make it as the party’s top priority.

Nevertheless, while ideals are beautiful, history is often violent. There is a big gap between ideals and reality. Less than one year after the party invoked the building of the “rule of law,” 317 human rights lawyers, activists and their family members in China since July 2015 have been reportedly detained and investigated in what has been dubbed the “709 crackdown”1 by the Western media, while in January 2016 several attorneys were formally arrested on suspicion of subverting state power. In addition, a new draft law bars any Chinese NGO from receiving foreign funding and calls on NGOs to act in accordance with Chinese law. The move to clamp down on NGOs has raised concerns as charity workers fear their work is being intensely curtailed in China.

While China’s state-owned Xinhua news agency reported in July 2015 that the crackdown on lawyers, social media celebrities, and petitioners was due to their alleged actions of “disrupting public order” and seeking profits by illegally organizing paid protests and swaying court decisions in the name of “defending justice and public interests,”2the media in the West framed it as an effort by the authorities to crack down on dissent.

As many as 38 lawyers and activists from the Fengrui law firm in Beijing have been detained in the “709 crackdown”. Among those who were arrested on subversion charges, the arrests of Fengrui’s director, Zhou Shifeng, and the human rights lawyer Wang Yu have attracted high international attention and triggered criticism from the West. Zhou once handled the controversial “Three Dear” poisoned milk powder case and represented the Hong Kong protestor Zhang Miao. Wang too was involved with several high profile cases. She represented the ethnic Uighur dissident Ilham Tohti and worked on religious, land rights, forced eviction, and petition cases.

Some observers in the West thus regard the CCP as adopting the Maoist political approach and view its leader Xi Jinping as an “authoritarian reformer” who tries to utilize multiple means, including reform, to amass an enormous amount of power in his own hands3. Some have even opined that China’s crackdown on civil society is driven partly by Xi’s obsession with control and also his fear that foreigners are secretly plotting to overthrow China’s one-party state4.

Apparently, different parties have their versions of the story and the media can choose which to believe. However, the gap between ideals and the reality pertaining to China’s rule of law needs to and can be explained objectively.

First, China’s legal reform is constrained greatly by its historical and cultural past. Ancient China’s legal system was characterized as the “Rule of Man” or “Rule by Law” because it was designed for the emperor to ensure that his decrees were faithfully implemented by his government officials. The emperor was regarded as the “Son of Heaven” who rules “all under heaven.” The emperor was not subject to legal restrictions and legalism served as a tool for government efficiency. Furthermore, the courts were simply another division of the state bureaucracy and there was no separation between the judiciary and the state. China never developed an independent judiciary as its counterparts did in the West.

While contradictions within the Party are acceptable, any action or mobilization to challenge the Party will be deemed as subversive and unforgivable, and will lead to coercion.

The CCP today inherits the legacy of the past and acts like an “organizational emperor.” The CCP as the organizational emperor connotes that the Party is the personification of a modern emperor, in that the Party is dominant over the state, and the Party and the state are dominant over society5. There are different “technologies of power” which the CCP exercises over the state and society, such as coercion, bargaining, and reciprocity6. In order to maintain the Party’s supremacy, the assimilation of different elements and the adoption of diversifying concepts through negotiation and persuasion are plausible. While contradictions within the Party are acceptable, any action or mobilization to challenge the Party will be deemed as subversive and unforgivable, and will lead to coercion.

In this sense, the CCP’s crackdown on attorneys and NGOs resembles the mechanism in Chinese ancient legalism which is embedded in and which has been employed by the CCP to choke off sources of potential dissent, guaranteeing the Party’s dominance over society, and strengthening its organizational emperorship.

Second, China’s legal reform still suffers profoundly from the Maoist legacy. During the Cultural Revolution (1966-1976), the legal system was severely impaired and abandoned. Law schools were shut down and the legal profession came to near obliteration in the 1960s. Efforts to rebuild the judiciary and legal profession resumed after Deng Xiaoping came to power in the late 1970s and early 1980s, but the leadership still faced a big problem in recruiting human capital for the legal system. Prior to the 1995 Judges Law, the admission and legal training of China’s judges and procurators were less stringent. There was no requirement to be a judge except that one had to be a cadre. In the 1980s and 1990s, large numbers of demobilized army soldiers with little formal legal backgrounds served on the courts. Party cadres from government institutions, usually public security, or Party organs such as the Political–Legal Committee, were also recruited as judges7.As judges tended to develop close connections with the Party, the CCP exerted a deep influence in the judiciary in the areas of ideology, decision making, and personnel matters.

In contrast to judges, lawyers and attorneys undertake a duty to represent their individual clients. In the 1980s, professional services were in high demand to facilitate economic reform. Legal experts prospered in this period and improvements in formal legal training and education equipped legal professionals with better critical reasoning and analytical skills to practice law. Following the promulgation of Lawyer Laws in 1996, not only did legal education improve, lawyers and legal experts also gained higher independence and autonomy and were redefined in a “less politically charged way.”8Having received formal education on the legal system and having been equipped with Western legal philosophies and ideas, the legal community has been instilled with zealous passion and consciousness on liberal democracy. Lawyers and attorneys often go beyond their legal profession to advocate the virtues of democracy, individual rights, and the rule of law, aiming to gradually influence China’s legal culture and push forward legal reforms. The adversarial relationship between judges, who represent the party, and legal professionals, who represent the people and fight for individual rights, has led to conflicting interests and has resulted in collision.

As judges tended to develop close connections with the Party, the CCP exerted a deep influence in the judiciary in the areas of ideology, decision making, and personnel matters.

Due to undue Party interference on the judiciary, judges who wear two hats often resort to political means to deal with legal practitioners. Lawyers who are incapacitated in court thus perceive the effort to champion social mobilization as an effective method to win appeals and litigation. However, when legal practitioners leave the courtroom and go on the street, resorting to politically sensitive activities, they step on the bottom line of the Party and risk being charged with “subversion of state power,” as exemplified in the recent “709 crackdown.” Politicization is now a widespread phenomenon in China’s legal community. Once legal practitioners leave the courtroom and go on the street, they are doomed to be the losers since, at this point, they have transformed a legal battle into a political one.

The relationship between the state and NGOs in China faces a similar dilemma. During China’s modernization process, Chinese society underwent remarkable change, spurring the development of NGOs. However, the relationship between NGOs and the state has yet to be institutionalized. According to the New York Times, China’s independent civil society groups have “long struggled to survive inside China’s ill-defined, shifting margins of official tolerance.”9 While NGOs which help reduce poverty, raise awareness on environmental issues, or provide medical care, have more room in China, while religious or human rights related NGOs face hurdles in either gaining approval from the authorities or raising funds from the local community. In order to operate, some NGOs solicit financial support from overseas, and Beijing has become increasingly concerned with these foreign donations, fearing that NGOs could be a subversive tool of external parties to topple the Chinese government. Given the fact that international NGOs have played a role in various “color revolutions” in different parts of the world, Beijing’s concern is not without reason.

Despite the difficulties, the party leadership is determined to build a system of rule of law. A series of concrete initiatives has been unveiled under Xi Jinping’s reform plan for the legal system. First, Beijing is to establish what China calls “circuit courts” and “cross-regional judicial bodies” to sever the connection between judges and local political interests. This is to weaken what China calls “legal localism.” Unlike the US, Beijing does not have its own legal bodies in different localities. Judges are appointed and paid by local governments and thus are subject to local interference. These new measures are expected to “free” judges from local government. Second and more importantly, political intervention in legal affairs by party cadres and government officials will be recorded and all consequences deriving from their intervention will be borne by them during their lifetimes. Third, professionalism will be promoted in the judicial system. All judges must either be law graduates or law professionals who have started their careers from basic-level courts before working their way up based on performance and ability.

After more than three decades of development, China’s legal system has been significantly improved. But the country is still on the cusp of cultural, political, and personnel dilemmas. This might be an inevitable transitional phenomenon as China is experiencing huge transformations and reforms. Beijing’s current reform initiatives and conviction in building the rule of law are not just a kind of window dressing; they reflect the leadership’s awareness of its need to improve governance, address widespread public grievances, and respond to public opinions. Indeed, the current reforms are widely expected to introduce radical improvements into the judicial system. China’s legal system needs a supply-side revolution. The party leadership is fully aware that if it fails to establish a system of rule of law as planned, it will be incapacitated in governing an increasingly complicated society. It took the West a few centuries to build its system of rule of law, it may take China even longer time to finish its march to the rule of law.

Notes

1. The
“709 Crackdown” refers to the recent crackdown on human right lawyers and
activists. July 9, 2015 was when the first
lawyer, Wang Yu, disappeared.

2. Do not mistake law enforcement for rights crackdown.
(2015, July 17). Xinhuanet. Retrieved
from http://news.xinhuanet.com/english/2015-07/17/c_134422746.htm

9.
Jacobs,
A. and Buckley, C. (2015, February 27). In China, civic groups’ freedom, and followers,
are vanishing. The New York Times. Retrieved from http://www.nytimes.com/2015/02/27/world/asia/in-china-civic-groups-freedom-and-followers-are-vanishing.html?_r=1